ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Wednesday, January 29, 2014

Civil Parties: The Rebuttal


The Civil Parties delivered somewhat of an uneven rebuttal.


First, the Civil Parties heavily relied on the testimony of Duch whom they characterized as “ha[ving] no reason to lie” and as being “a credible witness.” This extolment of Duch’s character is surprising, to put it mildly, given it is attributed to the man who has been caught lying on numerous occasions during and prior to this process. While declaring Duch “a credible witness,” the Civil Parties had no trouble characterizing Noun’s testimony regarding Khieu’s presence at the meeting where a decision to evacuate Phnom Penh was taken as “not credible.” What the Civil Parties failed to do here is to show the difference in character between Duch and Noun that would explain why the former’s testimony should be taken at face value even regarding the aspects of Democratic Kampuchea he knew little to nothing about (Civil Parties’ citation of Duch’s definition of ‘Angkar’ which “sometimes [meant] Pol Pot, sometimes Noun Chea” and which is absolutely ridiculous given what we know about the regime is a case in point; or the Civil Parties’ assertion based on Duch’s testimony that ‘smash’ necessarily meant “kill people;” I do not doubt that in Duch’s department it meant ‘kill people’ as he was in the business of executions, but there is abundant evidence that in other milieus it did not necessarily bear that meaning) whereas the latter’s testimony deserves no weight even regarding matters of which he had firsthand knowledge (Khieu’s presence at the meeting where the decision to evacuate Phnom Penh was taken and where Noun was present).

The Civil Parties tell us that ‘evacuation’ is the wrong term to describe what happened to the population of Phnom Penh immediately after the CPK takeover of the city but ‘forced movement’ is. That is a fair point as semantics does matter at law. However, what the Civil Parties should have sought to establish during the trial was that the population of Phnom Penh was ordered out of town at gunpoint and not by persuasion or individual or collective perception of what might happen if they disobeyed the CPK’s instruction. The Civil Parties have not done this. If the population of Phnom Penh was indeed ordered out of town at gunpoint, ‘forced movement’ it is; however, if it was duped into leaving the city, ‘forced’ will not obtain and the Civil Parties will be in the market for a new adjective. Yet, the Civil Parties tell us that the population was “deceived” and that the evacuation was “forced movement” in the same breath. Unless the Civil Parties have some creative way of arguing that at law that deception can be ‘force’ in ‘forced movement,’ I see the future of their argument to this effect as bleak and the Trial Chamber embarrassing itself if it chooses to agree with it.

The Civil Parties pummeled the defense for the unsubstantiated argument that 6 days’ worth of food was left in Phnom Penh when the CPK took over the city. I would gladly hand the Civil Parties a bat for the job as the defense fully deserves a severe beating for this one (if only we could bring back the qadi courts tradition where the judge would get up and beat the bejesus out of the litigant who he thought was making a bad argument). With that said, the Civil Parties offered no support for their argument that the defense’s assertion was incorrect.

Noun denies being known as ‘Brother Number 2’ and there has been much debate on the issue during the trial. While the Civil Parties believe the defense’s lack of substantiation for the 6 days’ worth of food left argument to be outrageous, they had no trouble weighing in on the Brother Number 2 argument in the following manner: “Everybody knew [him] as Brother Number 2.” Ah, the notorious “everybody knew” argument raises its ugly head again. We are indebted to Chhouk Rin for this one and the prosecution’s utterly shameless use of that part of Chhouk’s testimony.  

The Civil Parties wanted Noun to answer whether “knowing what he knows now he would do it again.” Perhaps a curious question for a different forum but Noun is not an ordinary criminal and even if he answers this question the way the Civil Parties want him to answer it, that will have no impact on his sentence, if convicted – the circumstances of the crimes of which he stands accused are extremely unlikely to come about in his lifetime and his personal circumstances are not likely to allow him to participate in them. If the Civil Parties are aiming at a statement of remorse, the numerous interviews he had given before this process and his statements in court are suggestive of his not being sorry. Do the Civil Parties want him to say he is sorry anyway even though he does not mean it?   

The Civil Parties commented on the defense’s statement that the policy was to treat new people and old people equally with “equally as slaves.” I have commented on the prosecution and civil parties’ use the term ‘slave’ on numerous occasions below and I have nothing to add to that. The Civil Parties’ present statement did absolutely nothing to change my mind regarding the prosecution and civil parties’ use of the term for reasons of bombast, not legal characterizations.

The Civil Parties tell us that there is a crime called “severely depriving of human rights.” I would have liked to see the legal basis upon which the Civil Parties rest this statement but the Civil Parties offered none.

The Civil Parties discussed starvation in the cooperatives at some length. I do not know if the Civil Parties meant to argue that starvation began immediately after the city population’s arrival at the cooperatives. Provided they did, they should have said so and substantiated their position. If not, the question of what happened in the cooperatives is outside the scope of this trial.

The defense got another severe beating on their argument of people volunteering to keep relocating after the evacuation of Phnom Penh (known by the inept term of ‘Second Phase of Population Movement’ that presumes that there was a complex relocation plan – which was not the case -- that broke into phases during which specific relocations were supposed to occur). A well-designed and well-articulated counterargument that leaves the defense’s theory to this effect in tatters.

The Civil Parties expressed indignation with Noun’s persistent complaints that he was not afforded the presumption of innocence. The Civil Parties dumbly decided to reply to these complaints with a statement that Noun’s victims were not afforded presumption of innocence at all. A very emotional but legally completely dumb argument.

The Civil Parties informed us that, in their opinion, ‘smashing’ and ‘re-education’ were one and the same thing and that it meant execution. If that was the case, how would I know people in today’s Cambodia who went through re-education during Democratic Kampuchea? Are the Civil Parties suggesting that these people are lying to me for absolutely no reason? Or, is it that they were the few survivors of the executions and yet for some odd reason they never mentioned to me that they were executed? Are the Civil Parties suggesting they forgot or are holding back on that while telling me everything else that happened to them during Democratic Kampuchea in minute detail? What the truth is here is that sometimes re-education meant a training period in the CPK doctrine dumbed down for the masses; other times, re-education meant that plus reassignment from a cooperative to a mobile brigade (where labor and living conditions were tougher); yet other times, re-education meant execution. The village cadre did not conduct re-education in the sense of the first two but they did use the term in the third sense, i.e. to take people out into the nearby wooded area and kill them. It is not hard to imagine why the Civil Parties chose to focus on the third of the 3 uses of the term ‘re-education’ but it makes for a disingenuous argument to have done so.

The Civil Parties want the Trial Chamber to admit untested evidence. I have commented on the common lawyers at the court keeping failing to grasp (thank you for perpetuating the stereotype that common lawyers can never understand the civil law system) the Cambodian law’s approach that all evidence is admissible unless otherwise provided by law. The lawyers therefore do not need to keep asking the Chamber to admit particular evidence – all of it that has been adduced has been admitted. It is the weight that the Chamber is going to assign to each type and individual piece of evidence that the lawyers should work towards. I do not imagine that this can be this difficult to understand.

Other than Duch, the Civil Parties’ other star witness was Francois Ponchaud. I understand that many of his statements from the witness stand help the Civil Parties but is this in and of itself a credential? Ponchaud – just like Al Rockoff – never should have been called as a witnesses to begin with as he had absolutely nothing of value to contribute. Ponchaud made sweeping statements and arrived at conclusions based on absolutely nothing other than his own thinking. One example of this is his statement, relied upon by the Civil Parties, which is as follows: “I did not believe the Americans would bomb; nor did the Khmer Rouge.” Given that Ponchaud had no access to either the US or the CPK establishments his sources of knowledge are nothing more than his own musings and it is these musings that the Civil Parties rely on for their argument. To maintain its credibility at the current level, at no point, should the Trial Chamber rely on anything Ponchaud said in court: His statements should be given zero weight.

All this was followed by an impassionate diatribe on the Khmer proverb of ants and elephants, a nutty and barely decipherable food shortage argument and other such balderdash on which I do not intend to comment here.

Hence, it is my assessment that the Civil Parties’ rebuttal was uneven: Some of it excellent, much of it flawed, and some of it an impassionate rant.